Eleanor Roosevelt and the Universal Declaration of Human Rights (1949)--Article 19 states that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers"[1]

Freedom of speech is a principle that supports the freedom of an individual or community to articulate one's opinions and ideas without fear of retaliation, censorship, or sanction.[2][3][4][5] The term "freedom of expression" is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

Freedom of expression is recognized as a human right under article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the UDHR states that "everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice". The version of Article 19 in the ICCPR later amends this by stating that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary "[f]or respect of the rights or reputation of others" or "[f]or the protection of national security or of public order (order public), or of public health or morals".[6]

The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.[14]

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[15]

International, regional and national standards also recognize that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression.[16]

Relationship to other rights

The right to freedom of speech and expression is closely related to other rights, and may be limited when conflicting with other rights (see limitations on freedom of speech).[16] The right to freedom of expression is also related to the right to a fair trial and court proceeding which may limit access to the search for information, or determine the opportunity and means in which freedom of expression is manifested within court proceedings.[17] As a general principle freedom of expression may not limit the right to privacy, as well as the honor and reputation of others. However greater latitude is given when criticism of public figures is involved.[17]

The right to freedom of expression is particularly important for media, which plays a special role as the bearer of the general right to freedom of expression for all.[16] However, freedom of the press is not necessarily enabling freedom of speech. Judith Lichtenberg has outlined conditions in which freedom of the press may constrain freedom of speech, for example where the media suppresses information or stifles the diversity of voices inherent in freedom of speech. Lichtenberg argues that freedom of the press is simply a form of property right summed up by the principle "no money, no voice".[18]

Democracy and social interaction

Freedom of speech is understood to be fundamental in a democracy. The norms on limiting freedom of expression mean that public debate may not be completely suppressed even in times of emergency.[17] One of the most notable proponents of the link between freedom of speech and democracy is Alexander Meiklejohn. He argues that the concept of democracy is that of self-government by the people. For such a system to work an informed electorate is necessary. In order to be appropriately knowledgeable, there must be no constraints on the free flow of information and ideas. According to Meiklejohn, democracy will not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism. Meiklejohn acknowledges that the desire to manipulate opinion can stem from the motive of seeking to benefit society. However, he argues, choosing manipulation negates, in its means, the democratic ideal.[19]

Eric Barendt has called this defense of free speech on the grounds of democracy "probably the most attractive and certainly the most fashionable free speech theory in modern Western democracies".[20] Thomas I. Emerson expanded on this defense when he argued that freedom of speech helps to provide a balance between stability and change. Freedom of speech acts as a "safety valve" to let off steam when people might otherwise be bent on revolution. He argues that "The principle of open discussion is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus." Emerson furthermore maintains that "Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay."[21]

Research undertaken by the Worldwide Governance Indicators project at the World Bank, indicates that freedom of speech, and the process of accountability that follows it, have a significant impact in the quality of governance of a country. "Voice and Accountability" within a country, defined as "the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and free media" is one of the six dimensions of governance that the Worldwide Governance Indicators measure for more than 200 countries.[22] Against this backdrop it is important that development agencies create grounds for effective support for a free press in developing countries.[23]

Richard Moon has developed the argument that the value of freedom of speech and freedom of expression lies with social interactions. Moon writes that "by communicating an individual forms relationships and associations with others - family, friends, co-workers, church congregation, and countrymen. By entering into discussion with others an individual participates in the development of knowledge and in the direction of the community."[24]

Free speech on university campuses in the United-States

University campuses have historically been bastions of free speech. UC Berkeley was the birthplace of the Free Speech Movement.

In recent times, many colleges and universities in the United States have retreated from historically strong support for free speech, including through the dis-invitation of speakers, promulgation of speech codes that prohibit what is deemed "offensive speech," and students protesting the participation of politically unpopular speakers on campus, including those widely regarded as outside the mainstream as well as those who are traditionalist Christians, pro-Israel, anti-abortion, or otherwise conservative.[25]

University of California, Los Angeles Chancellor Gene Block issued a statement concerning both the value of free speech and the responsibility for civil discourse. The statement was in favor of an environment in which people coming from different beliefs and backgrounds may engage in passionate dialogue without belittling one another. In Block's view, "just because speech is constitutionally protected doesn't mean that it is wise, fair or productive."[33]

In On Liberty (1859), John Stuart Mill argued that "...there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered."[35] Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. However, Mill also introduced what is known as the harm principle, in placing the following limitation on free expression: "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."[35]

In 1985, Joel Feinberg introduced what is known as the "offense principle", arguing that Mill's harm principle does not provide sufficient protection against the wrongful behaviors of others. Feinberg wrote "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end."[36] Hence Feinberg argues that the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm.[36] In contrast, Mill does not support legal penalties unless they are based on the harm principle.[35] Because the degree to which people may take offense varies, or may be the result of unjustified prejudice, Feinberg suggests that a number of factors need to be taken into account when applying the offense principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.[35]

Along similar lines as Mill, Jasper Doomen has argued that harm should be defined from the point of view of the individual citizen, not limiting harm to physical harm since nonphysical harm may also be involved; Feinberg's distinction between harm and offense is criticized as largely trivial.[37]

In 1999, Bernard Harcourt wrote of the collapse of the harm principle: "Today the debate is characterized by a cacophony of competing harm arguments without any way to resolve them. There is no longer an argument within the structure of the debate to resolve the competing claims of harm. The original harm principle was never equipped determine the relative importance of harms."[38]

Interpretations of both the harm and offense limitations to freedom of speech are culturally and politically relative. For instance, in Russia, the harm and offense principles have been used to justify the Russian LGBT propaganda law restricting speech (and action) in relation to LGBT issues. A number of European countries that take pride in freedom of speech nevertheless outlaw speech that might be interpreted as Holocaust denial. These include Austria, Belgium, Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Slovakia, and Switzerland.[39]

Kurt Westergaard, a Danish cartoonist, created the controversial cartoon of the Islamic prophet Muhammad wearing a bomb in his turban and was met with strong violent reactions worldwide.[40]

Norman Finkelstein, a writer and professor of political science expressed the opinion that Charlie Hebdo's abrasive cartoons of Muhammad exceeded the boundaries of free speech, and compared those cartoons with the cartoons of Julius Streicher,[41] who was hanged by the Allies after World War II for the words and drawings he had published. In 2006, in response to a particularly abrasive issue of Charlie Hebdo, French President Jacques Chirac condemned "overt provocations" which could inflame passions. "Anything that can hurt the convictions of someone else, in particular religious convictions, should be avoided", Chirac said.[42]

In the U.S., the standing landmark opinion on political speech is Brandenburg v. Ohio (1969),[43] expressly overruling Whitney v. California.[44] In Brandenburg, the US Supreme Court referred to the right even to speak openly of violent action and revolution in broad terms:

[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.[45]

The opinion in Brandenburg discarded the previous test of "clear and present danger" and made the right to freedom of (political) speech's protections in the United States almost absolute.[46][47] Hate speech is also protected by the First Amendment in the United States, as decided in R.A.V. v. City of St. Paul, (1992) in which the Supreme Court ruled that hate speech is permissible, except in the case of imminent violence.[48] See the First Amendment to the United States Constitution for more detailed information on this decision and its historical background.

The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result. Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar - in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.[...] My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication. The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. [...] As we learned at the hearing, there is also a compelling need for public educations about the benefits and dangers of this new medium, and the Government can fill that role as well. In my view, our action today should only mean that Government's permissible supervision of Internet contents stops at the traditional line of unprotected speech. [...] The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of the plaintiff's experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is chaos." Just as the strength of the Internet is chaos, so that strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.[52]

We reaffirm, as an essential foundation of the Information society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits of the Information Society offers.[53]

Freedom of information

Freedom of information is an extension of freedom of speech where the medium of expression is the Internet. Freedom of information may also refer to the right to privacy in the context of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognised human right and freedom of information acts as an extension to this right.[55] Freedom of information may also concern censorship in an information technology context, i.e. the ability to access Web content, without censorship or restrictions.[56]

Freedom of information is also explicitly protected by acts such as the Freedom of Information and Protection of Privacy Act of Ontario, in Canada.[57]

History of dissent and truth

Before the invention of the printing press a written work, once created, could only be physically multiplied by highly laborious and error-prone manual copying. No elaborate system of censorship and control over scribes existed, who until the 14th century were restricted to religious institutions, and their works rarely caused wider controversy. In response to the printing press, and the heresies it allowed to spread, the Roman Catholic Church moved to impose censorship.[64] Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture).[65] The origins of copyright law in most European countries lie in efforts by the Roman Catholic Church and governments to regulate and control the output of printers.[65]

In 1501 Pope Alexander VI issued a Bill against the unlicensed printing of books and in 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time.[64] The Index Expurgatorius is the most famous and long lasting example of "bad books" catalogues issued by the Roman Catholic Church, which presumed to be in authority over private thoughts and opinions, and suppressed views that went against its doctrines. The Index Expurgatorius was administered by the Roman Inquisition, but enforced by local government authorities, and went through 300 editions. Amongst others, it banned or censored books written by René Descartes, Giordano Bruno, Galileo Galilei, David Hume, John Locke, Daniel Defoe, Jean-Jacques Rousseau and Voltaire.[67] While governments and church encouraged printing in many ways because it allowed for the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licenses to trade and produce books.[65]

The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing and the press. Areopagitica, published in 1644, was John Milton's response to the Parliament of England's re-introduction of government licensing of printers, hence publishers.[68] Church authorities had previously ensured that Milton's essay on the right to divorce was refused a license for publication. In Areopagitica, published without a license,[69] Milton made an impassioned plea for freedom of expression and toleration of falsehood,[68] stating:

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.[68]

Milton's defense of freedom of expression was grounded in a Protestant worldview and he thought that the English people had the mission to work out the truth of the Reformation, which would lead to the enlightenment of all people. But Milton also articulated the main strands of future discussions about freedom of expression. By defining the scope of freedom of expression and of "harmful" speech Milton argued against the principle of pre-censorship and in favor of tolerance for a wide range of views.[68] Freedom of the press ceased being regulated in England in 1695 when the Licensing Order of 1643 was allowed to expire after the introduction of the Bill of Rights 1689 shortly after the Glorious Revolution.[72][73] The emergence of publications like the Tatler (1709) and the Spectator (1711) are given credit for creating a 'bourgeois public sphere' in England that allowed for a free exchange of ideas and information.

As the "menace" of printing spread, more governments attempted to centralize control.[74] The French crown repressed printing and the printer Etienne Dolet was burned at the stake in 1546. In 1557 the British Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books." The right to print was restricted to two universities and to the 21 existing printers in the city of London, which had 53 printing presses. As the British crown took control of type founding in 1637 printers fled to the Netherlands. Confrontation with authority made printers radical and rebellious, with 800 authors, printers and book dealers being incarcerated in the Bastille in Paris before it was stormed in 1789.[74]

A succession of English thinkers was at the forefront of early discussion on a right to freedom of expression, among them John Milton (1608-74) and John Locke (1632-1704). Locke established the individual as the unit of value and the bearer of rights to life, liberty, property and the pursuit of happiness. However Locke's ideas evolved primarily around the concept of the right to seek salvation for one's soul, and was thus primarily concerned with theological matters. Locke neither supported a universal toleration of peoples nor freedom of speech; according to his ideas, some groups, such as atheists, should not be allowed.[75]

George Orwell statue at the headquarters of the BBC. A defence of free speech in an open society, the wall behind the statue is inscribed with the words "If liberty means anything at all, it means the right to tell people what they do not want to hear", words from George Orwell's proposed preface to Animal Farm (1945).[76]

By the second half of the 17th century philosophers on the European continent like Baruch Spinoza and Pierre Bayle developed ideas encompassing a more universal aspect freedom of speech and toleration than the early English philosophers.[75] By the 18th century the idea of freedom of speech was being discussed by thinkers all over the Western world, especially by French philosophes like Denis Diderot, Baron d'Holbach and Claude Adrien Helvétius.[77] The idea began to be incorporated in political theory both in theory as well as practice; the first state edict in history proclaiming complete freedom of speech was the one issued December 4, 1770 in Denmark-Norway during the regency of Johann Friedrich Struensee.[78] However Struensee himself imposed some minor limitations to this edict in October 7, 1771, and it was even further limited after the fall of Struensee with legislation introduced in 1773, although censorship was not reintroduced.[79]

John Stuart Mill (1806-1873) argued that without human freedom there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill's On Liberty, published in 1859 became a classic defence of the right to freedom of expression.[68] Mill argued that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared. Truth is not stable or fixed, but evolves with time. Mill argued that much of what we once considered true has turned out false. Therefore, views should not be prohibited for their apparent falsity. Mill also argued that free discussion is necessary to prevent the "deep slumber of a decided opinion". Discussion would drive the onwards march of truth and by considering false views the basis of true views could be re-affirmed.[80] Furthermore, Mill argued that an opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech.[81]

In Evelyn Beatrice Hall's biography of Voltaire, she coined the following sentence to illustrate Voltaire's beliefs: "I disapprove of what you say, but I will defend to the death your right to say it."[82] Hall's quote is frequently cited to describe the principle of freedom of speech.[82] In the 20th Century, Noam Chomsky states that: "If you believe in freedom of speech, you believe in freedom of speech for views you don't like. Stalin and Hitler, for example, were dictators in favor of freedom of speech for views they liked only. If you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise."[83]Lee Bollinger argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." Bollinger argues that tolerance is a desirable value, if not essential. However, critics argue that society should be concerned by those who directly deny or advocate, for example, genocide (see limitations above).[84]

References

^Mill, John Stuart (1859). "Introductory". On Liberty (4th ed.). London: Longman, Roberts & Green (published 1869). para. 5. Society can and does execute its own mandates ... it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough...

^Mill, John Stuart (1859). "Of the Liberty of Thought and Discussion". On Liberty (4th ed.). London: Longman, Roberts & Green (published 1869). para. 19. In respect to all persons but those whose pecuniary circumstances make them independent of the good will of other people, opinion, on this subject, is as efficacious as law; men might as well be imprisoned, as excluded from the means of earning their bread.

^Wragg, Paul (2015). "Free Speech Rights at Work: Resolving the Differences between Practice and Liberal Principle"(PDF). Industrial Law Journal. Oxford University Press. 44 (1): 11. (Subscription required (help)). Comparison may be made between Mill's 'tyrannical majority' and the employer who dismisses an employee for expression that it dislikes on moral grounds. The protection of employer action in these circumstances evokes Mill's concern about state tolerance of coercive means to ensure conformity with orthodox moral viewpoints and so nullify unorthodox ones.

^"Article 19". International Covenant on Civil and Political Rights. Office of the United Nations High Commissioner for Human Rights; adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. 23 March 1976. Archived from the original on 5 July 2008. Retrieved 2014.

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